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2019 DIGILAW 772 (CAL)

Dilip Das @ Rabi v. State of West Bengal

2019-08-01

JAY SENGUPTA, MD.MUMTAZ KHAN

body2019
JUDGMENT : Md. Mumtaz Khan, J. 1. This appeal has been preferred by the appellants assailing the judgment, order of conviction and sentence dated June 13, 2007 and June 14, 2007 respectively passed by the learned Additional District & Sessions Judge, 5th Fast Track Court, Malda in Sessions Trial No.19(7)2006 arising out of Sessions Case No. 105 of 2006 thereby holding the appellants guilty of the commission of offence punishable under Section 302 of the Indian Penal Code read with Section 34 of the Indian Penal Code (hereinafter referred to as IPC) and sentencing them to suffer rigorous imprisonment for life each and to pay a fine of Rs. 5,000/- each in default to suffer further rigorous imprisonment for 2 years each with a direction for set off as per provisions of Section 428 of the Code of Criminal Procedure (hereinafter referred to as Cr.P.C.). 2. On February 2, 2005 one Kajal Kumar Das, since deceased, lodged a written complaint before the officer-in-charge English Bazar P.S. to the effect that on February 19, 2005 at about 4.30 in the afternoon his brother-in-law Santosh Kumar Bhowmik, the victim, without any intimation to anybody went out of his office room of Ma Tara Transport, situated at Mangalbari but when he did not return back till mid night they started searching for him but he was not found. 3. On that day (February 20, 2005) at about 4 in the night they got information from English Bazar P.S. about lying of a dead body in the house of the appellant Dilip Das @ Rabi Das at Ganipur village, who was the driver of Matara Transport. After getting such information he along with Ajit Ghosh, Partha Sarathi Paul and Susil Saha went there and found the dead body of the victim Santosh Kumar Bhoumik lying there having bleeding condition in the varanda of the residential house of the appellant. He was of firm belief that the appellants Dilip Das and his wife Nipa Das with an ill motive murdered the victim. 4. On the basis of the written complaint of Kajal Das, English Bazar P.S. Case No. 88 dated 20, 2005 was started against the appellants under Section 302/34 IPC by P.W.22. 5. He was of firm belief that the appellants Dilip Das and his wife Nipa Das with an ill motive murdered the victim. 4. On the basis of the written complaint of Kajal Das, English Bazar P.S. Case No. 88 dated 20, 2005 was started against the appellants under Section 302/34 IPC by P.W.22. 5. He then himself took up investigation of the case and thereafter on his transfer this case was investigated by P.W.21 and thereafter on completion of investigation a charge sheet was submitted against the appellants under Section 302/34 IPC. On February 20, 2005 P.W.22 held inquest over the dead body of the victim in presence of Kajal Kumar Das since, deceased, Ajit Kumar Ghosh, P.W.6 and P.W.8 and prepared a report (Ext.7). On the same day P.W.13 conducted post mortem examination over the dead body of the victim and during examination he found several injuries on laceration of different dimension fracture of frontal right parietal and occipital bone, nasal bone, upper and lower jaw etc. and opined that the immediate cause of death was the effects of the above ante mortem injuries by a hard and blunt object. After post mortem examination he prepared a report (Ext.3). On July 5, 2006 charge under Section 302 IPC read with Section 34 IPC was framed against the appellants and on their pleading not guilty to the charge, trial commenced. 6. Prosecution in order to prove its case examined 22 witnesses and also produced and proved the written complaint, formal FIR, seizure list, inquest report, PM report, extract of the GDE, rough sketch map with index, FSL report, some photographs, one statement of the accused no. 1 relating to the recovery of the weapon of offence relating to his statement. Thereafter on completion of trial and after examination of the appellants under Section 313 Cr.P.C. and recording of the evidence on behalf of the defence as DW1 learned trial judge passed the impugned judgment. 7. Mr. Asish Sanyal, learned senior Counsel appearing for the appellant, submitted that the impugned judgment and order of conviction and sentence are not sustainable in law as the prosecution failed to complete the chain of circumstances. He also submitted that there has been no iota of evidence to show that the victim was last seen together with the appellants and that prosecution has failed to prove the motive behind such grusome murder. 8. He also submitted that there has been no iota of evidence to show that the victim was last seen together with the appellants and that prosecution has failed to prove the motive behind such grusome murder. 8. He further submitted that appellants were not in the house on the relevant date which they had clearly stated in their statement recorded under Section 313 Cr.P.C. and this also found corroboration from D.W.1 as also the prosecution witness, P.W.5. He also raised question as to who informed the police and/or how police came to know that the dead body was lying in the verandah and no such telephone number or call track record was collected and produced during trial. According to Mr. Sanyal prosecution failed to prove the charge against the appellant beyond any shadow of doubt. 9. He relied upon the decision of Reena Hazarika Vs. State of Assam reported in AIR 2018 SC 5361 . 10. Mr. Ranabir Ray Chowdhuury, learned advocate appearing for the State, submitted that dead body of the victim was found in the verandah of the appellants and the death of the victim was due to ante mortem injury homicidal in nature caused by a wooden bar as opined by the post mortem doctor and weapon of offence was seized from the house of the appellant relating to his statement. He also submitted that mobile phone of the victim was also seized from the self of the appellant's house and there was the seizure of cup, plate along with glass having human blood from inside the house and that it was not expected that a person would leave his house keeping it open with all lights on as was found at the relevant date and time. He further submitted that seizure of the motor cycle of the victim in front of the house of the appellant, recovery of the victim's mobile and weapon of offence relating to the statement of appellant No. 1, seizure list of blood stained cup, plate and glass, spectacles having blood stained and the above circumstances lead to irresistible conclusion that the victim was killed by the appellant. He also submitted that appellant left his office at 4.30 p.m. and went to the house of the appellant to discuss business matter as they were in the same profession and his dead body was recovered on that night at 12/1 a.m. from inside the verandah of the appellants and the absconding of the appellants leaving the lights on and the door open and the recovery of above articles clearly show the involvement of the appellants in the commission of murder of the victim. He further submitted that absence of motive is not fatal for the prosecution case and further that appellants who had taken the plea of alibi has failed to prove the same. 11. Mr. Roy Chowdhury relied upon the decision in the matter of State of Rajasthan Vs. Thakur Singh reported in 2014 (6) SCC Cri 666 in support of his submission. 12. We have considered the submissions of the learned advocates appearing for the respective parties and have perused the evidence and documents on record to consider the propriety of the impugned judgment. 13. On perusal of the evidence of the P.W.13 and the PM report (Ext.3), it was evident that on February 20, 2005 during postmortem examination over the dead body of the victim the autopsy surgeon found rigor mortis was present, several lacerated injuries of different dimensions, abrasion, bruises, fracture of nasal bone, upper and lower jaw with dislocation of teeth of both sides, middle part of left arm bone, right parietal and occipital bone about 13 in number and opined that the immediate cause of death was due to the effects of the above injuries which were ante mortem and homicidal in nature caused by hard and blunt object like wooden bar. He also opined the probable time of death to be within 36 hours of examination. Defence has not dispute or denied the injuries found on the person of the victim and the cause of his death. Admittedly, none of the witnesses examined by the prosecution is a witness to the occurrence and the entire case of the prosecution is based on circumstantial evidence. 14. It is well settled proposition of law that where the cases rests squarely on the circumstantial evidence the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused. 14. It is well settled proposition of law that where the cases rests squarely on the circumstantial evidence the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused. The chain of circumstance should be of a conclusive nature and must be complete and most clearly point out to the guilt of the accused. The circumstances which the prosecution has tried to prove against the appellants are the recovery of the dead body of the victim bearing several injuries of different dimensions on his person from the verandah of the house of the appellants, recovery of motor cycle of the victim from in front of the house of the appellants, recovery of mobile phone of the victim from the bed room of the appellants and the weapon of offence from the backside of their house leading to statements of the appellant no.1, seizure of spectacles and sandals of the victim and blood- stained cup-plate, steel glass from the house of the appellants and failure of the appellants to prove the alibi that they were not present in their house on the relevant date, absconsion of the appellants from their house keeping all the lights on and the door open and failure on the part of the appellants to give any satisfactory explanation how the dead body of the victim who was not related with them was found in their house. With regard to the recovery of the dead body of the victim from the verandah of the house of the appellants, prosecution has relied on the evidences of P.W1, P.W.3, P.W.4, P.W.5, P.W.6, P.W.8, P.W.11, P.W.21 and P.W.22. 15. According to P.W.1, on the relevant night he along with Partha, an employee of the deceased went out to search the victim. They met Kajal Das, 'bhaira bhai' of deceased and told him about missing of the victim. All of them then started searching victim and at about 12.00/1 .00 a.m. went to English Bazar P.S. and informed the incident to police. They left the P.S. and were standing by the side of Samrat Hotel. Kajal Das then received one telephonic information from the English Bazar P.S. informing him that one dead body was found lying in the house of the appellant at Ganipur and asked him to go to that place for identification. They left the P.S. and were standing by the side of Samrat Hotel. Kajal Das then received one telephonic information from the English Bazar P.S. informing him that one dead body was found lying in the house of the appellant at Ganipur and asked him to go to that place for identification. Then they went to the house of the appellant No. 1 at Ganipur and on entering into the house they saw the dead body of the victim lying at the verandah of the said house and there were bleeding on the face and other parts of his body. 16. The above statements of P.W.1 also found corroboration from P.W.6 and P.W.8. P.W.8 also deposed that he did not find any member of the appellant No. 1 in the house. Interestingly, they were not challenged by the defence that dead body of the victim was not recovered from the varandah of the house of the appellants. P.W.3, neighbour of the appellant no.1 who was declared hostile by the prosecution has also deposed that about 1½ years ago at about 6.00 hours police took out one dead body from the house of the appellant. P.W.4, who was also declared hostile by the prosecution too has clearly deposed that about 1½ years ago in the morning police took out dead body of the victim from the house of the appellants. P.W.5 has also deposed that in the month of February 2005 on Sunday he saw police to take away one dead body from the house of appellants. Interestingly, they were also not challenged by the defence on that score. On the other hand by putting suggestion to them, the defence tried to prove that prior to the incident appellants were away from their house and had gone to the house of one Swapan Das (D.W.1). 17. According to P.W.11, SI of police of English Bazar P.S. also on February 19, 2005 at night, the duty officer (P.W.18) got one news over phone that one dead body was lying in the verandah of the house of appellant No.1 at Ganipur. Thereafter, as per the order of the inspector- in-charge he along with P.W.21 and force went to the house of appellant no.1 and saw one dead body was lying in the verandah of the house of the appellant No. 1 with the bleeding injury. Thereafter, as per the order of the inspector- in-charge he along with P.W.21 and force went to the house of appellant no.1 and saw one dead body was lying in the verandah of the house of the appellant No. 1 with the bleeding injury. He did not find any person present in the house. At about 1.30 a.m. on that night Kajal Das and others came to that house and Kajal Das identified the dead body to be of the victim Santosh Bhowmik. P.W.18 has also deposed that on February 19, 2005 she received one information which she recorded in the GD (Ext.4) and after receiving the said information P.W.11 and P.W.21 went to the house of the Dilip Das (appellant no.1) at Ganipur. P.W.21 has also deposed that the dead body of the victim was found in the varadah of the house of appellant no.1 at Ganipur which was identified by Kajal Das and others who arrived there. They saw all the lights of the house were on. They started searching for the neighboring people but could not find any one of them. P.W.22, the investigating officer, also during visit at the place found the dead body of the victim lying in the varandah of the house of appellant no.1 and he also held inquest there in presence of Kajal Das, P.W.6, P.W.8 and one Ajit kumar Ghosh and prepared report (Ext.7). 18. So, from the above it is evident that in the midnight of 19th/20th February, 2005 dead body of the victim Santosh Kumar Bhowmik having bleeding injuries on his person was found lying in the varadah of the house of the appellant no.1 at Ganipur and at that time appellants were not found in the house. 19. It has come out from the evidence on record especially from the evidence of the wife of the victim (P.W.19) that her husband had a transport business named and styled 'Ma Tara Transport' and the appellant no.1 was the driver of their truck and appellant no.2 was the wife of appellant no.1. Now the question arises as to when and why the victim went to the house of the appellant no.1. 20. Now the question arises as to when and why the victim went to the house of the appellant no.1. 20. According to P.W.19, on February 19, 2005 since 10.00 hours to 16.00 hours appellants called her husband (victim) over phone to their house and at about 16.30 hours victim left his office and went to the house of appellants at Ganipur but thereafter he did not return back. At about 19.30 hrs. Partho Das came to her house and informed her that her husband was found missing and his mobile phone was kept switched off. Accordingly, she along with the Partho went to the transport office, searched her husband but did not find him and accordingly, at about 21.30 hrs. she then returned back to her house. She informed the incident to Kajal Das who then along with his friend started searching her husband and thereafter found the dead body of her husband in the verandah of the house of the appellants. She admitted during cross that on February 19, 2005 at 6.00 hours her deceased husband went out from the house and thereafter she did not receive any call from him. She also admitted that about 15 employees including the appellant No. 1 used to work in the said transport business and that during the lifetime of her husband she never went to the said transport office. So, from the evidence of the above witness it was evident that on February 19, 2005 at 6.00 hours victim went out of the house and thereafter, she did not receive any phone call from her husband. She reportedly learnt about missing of her husband from Partho Das and then informed Kajal Das. 21. According to P.W.1, an ex-employee of the victim, on the relevant date at about 18.00 hours/19.00 hours he went to the office of the victim but did not find him there. Partho Das, an employee of the deceased, then told him that after receiving one phone call victim left the office. At about 20.00/21.00 hours Partho Das closed the office and then he along with Partho went out to search the victim and on the way met Kajal Das, bhaira bhai of the deceased and told him about the missing of the deceased and then Kajal Das accompanied them for searching. 22. At about 20.00/21.00 hours Partho Das closed the office and then he along with Partho went out to search the victim and on the way met Kajal Das, bhaira bhai of the deceased and told him about the missing of the deceased and then Kajal Das accompanied them for searching. 22. P.W.6, employee of Kajal Das, a transporter, has claimed that on February 19, 2005 at 16.30 hours victim came to the transport office of Kajal Das and told him that he would go to the house of the appellant No. 1 and after return he would discuss a business matter with him. Then, on that night after 22.30 hours wife of deceased came to their office and informed them that the mobile of her husband was switched off and he has not yet returned to house. As such he along with Kajal Das and other six persons started searching the victim and went to English Bazar P.S. where Kajal Das informed police about missing of the deceased. But from the evidence of the investigating officer (P.W.22) it is evident that he did not say all these to him during investigation. From Ext.2, the written complaint, we find that Kajal Das, since deceased, stated in the complaints that on February 19, 2005 at about 4.30 p.m. victim went out of his office without any intimation to anyone and till mid night when he did not return back they started searching him and in the night at about 1.00 O'clock they received information from the English Bazar P.S. that a dead body was lying in the house of the appellant No. 1 at Ganipur village. Accordingly, he along with P.W.1, Partho Sarathi Pal and Sushil Saha went to the house of the appellants at Ganipur village and found the victim lying dead having bleeding injuries in the varandah of the residential house of the appellant No. 1 and that he was of firm believe that appellants with ill motive murdered the victim. Thus, we find that even the written complaint did not support the claim of P.W.6 that on the relevant date at 16.30 hours victim went to the transport office of Kajal Das and told him that he would go to the house of the appellant No. 1 and after return from his house, he would discuss the business matter with him. The claim of P.W.6 that on the relevant night at 22.30 hours P.W.19 came to their office and informed them that the mobile of her husband was lying switched off also do not find corroboration from P.W.19. On the other hand P.W.19 has deposed that it was Partho Das who informed her that her husband was missing and his mobile phone was switched off. 23. P.W.8 has claimed that on February 19, 2005 in the afternoon he was present in the godown of Gopal Saha and there he came to know from Kajal Sarkar (P.W.10) that the victim went to the house of the appellants. Then he along with P.W.1, P.W.6 and Kajal Das went out to search the victim and thereafter went to the English Bazar P.S. and at about 2.00 hours on that night they came to know that police informed Kajal Das in his mobile about lying of one dead body in the house of the appellant. Then they went to the house of appellant and saw the dead body of the victim in the varandah of his house having bleeding injuries on his face and chest and fracture injury on his left hand. Interestingly, he too did not say all these to P.W.22 during investigation. 24. Surprisingly, no such call register has been produced nor Partho Das, an employee of the deceased, nor any other employee of 'Ma Tara Transport' has been examined by the prosecution for the reason best known to the prosecution while Kajal Das, the FIR maker, is reported to be dead. Even P.W.6 and P.W.8 did not say to P.W.22 during investigation whatever they deposed before court. 25. Thus from the above, it can be safely concluded that the prosecution has failed to bring any iota of evidence to show that the appellants called the victim to their residence over phone and on receiving such phone he went to their house. 26. With regard to the recovery of motor-cycle of the victim from in front of the house of the appellant, prosecution has relied on the evidences of P.W.6, P.W.19, P.W.21 and P.W.22. 27. According to P.W.21, 2nd investigating officer who submitted charge-sheet, on the relevant night on arrival at the house of appellant no.1 at village Ganipur they found one motor cycle kept standing in front of the house of appellant No. 1. 27. According to P.W.21, 2nd investigating officer who submitted charge-sheet, on the relevant night on arrival at the house of appellant no.1 at village Ganipur they found one motor cycle kept standing in front of the house of appellant No. 1. According to P.W.22, 1st investigating officer, on February 20, 2005 during investigation he visited the place of occurrence which is the varandah of the house of appellant No. 1, prepared one rough sketch map with index, held inquest over the dead body of the victim and seized one blue Kinetic GF 170 motor cycle bearing Registration No. WB-66-C/5145 from the village path in front of the house of the appellant No. 1 by a seizure list (Ext. 1/11) in presence of the witnesses. He further deposed that as per order of court wife of the deceased took the said motor cycle from the court. 28. P.W.6, one the witness to the seizure of the said motor-cycle, has deposed that on the relevant night on getting information from Kajal Das over mobile phone about lying of the dead body of victim and his motor- cycle there, he went there and identified the motor-cycle to be that of the victim which was seized by the Police by a seizure list on which he signed (Ext.1/1). P.W.19, wife of the victim has also deposed that motor-cycle of her husband was found lying in the house of the appellants which was seized by the police and from court she received the said motor-cycle. Interestingly, they were not challenged by the defence that no such motor-cycle of the victim was found in front of the house of the appellants. In view of the above there appears no reason to disbelieve the version of the above witnesses. 29. With regard to the recovery of mobile of the victim and the weapon of offence namely 'hudka' leading to the disclosure statements of the appellant no.1 prosecution has relied on the evidence of P.W.22, the investigating officer and P.W.9 and P.W.20, the reported witnesses to the seizures. 30. According to P.W.22, in course of investigation he arrested the appellant No. 1 from his father-in-law's house and returned back to the P.S. and recorded his statement and during remand period appellant No. 1 made disclosure statement towards recovery of mobile phone of the victim and the weapon of offence which he recorded (Ext. 30. According to P.W.22, in course of investigation he arrested the appellant No. 1 from his father-in-law's house and returned back to the P.S. and recorded his statement and during remand period appellant No. 1 made disclosure statement towards recovery of mobile phone of the victim and the weapon of offence which he recorded (Ext. 10) and then he went to the house of appellant no.1 with him and thereafter, appellant No. 1 took out one black and steel coloured nokia mobile phone from the wall shelf of his bed room and handed over to him and accordingly, he seized the same by a seizure list (Ext. 1/17) in presence of witnesses on which appellant No.1 also signed (identified Ext. 1/18). Thereafter, as per order of the court wife of the deceased received the seized nokia mobile phone from court. On being asked as whether after seizure of the nokia mobile, he sealed and labeled the same and put his signature or took signature the appellant No. 1 and the seizure witnesses to which he failed to give any reply but admitted that Case Diary is silent on this score. P.W.19 has admitted that she received the seized mobile phone from court. P.W.22 also deposed that on the basis of the statement (Ext.10) of the appellant No. 1 he went to his house along with appellant No. 1 and then appellant no.1 also took out one 'hudka' of door made of saal wood measuring about 3.5 ft.x 3'' x 2'' stained with dried blood (Mat.Ext.4) from behind his residential eastern room and gave it to him which he seized in presence of the witnesses by the seizure list (Ext. 1/15) and the appellant No. 1 also signed on the seizure list (identified Ext. 1/16). During cross-examination he though admitted that 'hudka' was recovered from the mango garden of Jay Gopal Nandi behind eastern side of the dwelling house of appellant No. 1. 31. P.W.9, a witness to the reported seizure of nokia mobile and 'hudka' has denied that police seized anything in his presence and/or his LTI was obtained on the seizure lists. As such he was declared hostile by the prosecution and was cross-examined by the prosecution as also by defence. 32. 31. P.W.9, a witness to the reported seizure of nokia mobile and 'hudka' has denied that police seized anything in his presence and/or his LTI was obtained on the seizure lists. As such he was declared hostile by the prosecution and was cross-examined by the prosecution as also by defence. 32. P.W.20, also a witness to the reported seizure, merely identified his signatures (Exts.1/8 and 1/9) on the seizure lists but went on to say that he signed on a blank papers on the road in front of the house of his father-in-law as per order of the police. He too was declared hostile by the prosecution and was cross-examined by the prosecution as also by defence. Interestingly, no such seized 'hudka' or mobile phone was produced either before P.W.9 or before P.W.20 for their identification. 33. Thus from the above we find that none of the seizure witnesses has supported the claim of the investigation officer with regard to the seizure of any mobile phone or 'hudka' leading to the statements of the appellant no.1 as claimed by P.W.22, the investigating officer. Furthermore, the reported disclosure statement, according to P.W.22 was made on February 21, 2005 in between 8.00 hours to 9.15 hours but the seizure lists (Exts.1/15 and 1/17) shows reported seizures were made on February 23, 2005 in between 14.25 hours to 15.05 hours and 15.10 to 15.35 hrs. On being challenged P.W.22 admitted that the case diary is silent and there was no explanation as to why he did not go to the place with appellant No. 1 either on February 21, 2005 or February 22, 2005 for recovery of the articles. Such delay in recovery of mobile phone and 'hudka' since the time of disclosure without any cogent reason or explanation from the investigating officer puts a serious question mark in such claim of the investigating officer particularly when there was visit of several persons in the house of the appellants since the detection of the dead body of the victim and the place where from 'hudka' was reportedly recovered not being in the exclusive control/possession of the appellants. Learned trial judge after taking into account the evidence of the investigating officer and the documents produced held that prosecution has failed to prove strictly and legally that as per the instance of the appellant no.1 the 'hudka' and mobile phone were recovered from behind the residential eastern room of the appellant no.1 and from the wall shelf of the bed room of the appellant no.1 respectively. We do not find any error with regard to the above conclusion of the learned court below in the light of the settled proposition of law. 34. Therefore, the propriety of the impugned judgment cannot be questioned on the above ground. 35. With regard to the seizure of tea cup and plate, steel glass, stained with blood, one pair of sandel, some portions of cement floor stained with blood, has-bolt of door (broken) made of iron and spectacles from the house of the appellant No.1., prosecution has relied on the evidences of P.W.1 and P.W.22. 36. According to P.W.22, on February 20, 2005 he visited the house of the appellant No. 1 and seized one cup and plate being stained with blood, one steel glass stained with blood, one pair of sandal having brown colour of Bata Appolo Co., some hair with skin of head, some portion of cement floor stained with blood, some portion of cement floor, one has-bolt of door made of iron and one spectacles from in and around the place of occurrence by a seizure list (Ext. 1/10) in presence of witnesses.P.W.1, one of the witnesses to the reported seizure, has also deposed that police seized one mobile set, leather 'chappal' and one spectacles of the victim in his presence and he signed on the seizure list. He identified his signature (Ext.1) on the seizure list (Ext. 1/10). Though he claimed that police seized one mobile set of the victim in his presence but the seizure list (Ext.1/17) does not support his such claim. Surprisingly, no such seized articles was produced during trial for identification nor there is any such whisper by the investigating officer that the chappal or the spectacles in questions belong to the deceased. Even P.W.19, the wife of the deceased, has nowhere stated that the seized spectacle or sandal belonged to her husband. Surprisingly, no such seized articles was produced during trial for identification nor there is any such whisper by the investigating officer that the chappal or the spectacles in questions belong to the deceased. Even P.W.19, the wife of the deceased, has nowhere stated that the seized spectacle or sandal belonged to her husband. However, even if we accept the recovery of mobile phone, spectacles and sandals of the victim from the house of the appellants it can not be treated as unusual in view of the recovery of the dead body of the victim from that place, as such articles of general use remains with the person using it. According to P.W.22, he also seized wearing apparel of the victim, P.M. blood, one leather money bag containing driving licence in the name of the victim, one iron ring of the motor-cycle containing five keys produced by Home Guard 886 Ambuj Jha (P.W.14) at the P.S. by a seizure list (Ext.1/12) and also seized shirt and sando ganjee of the appellant no.1 (Mat.Ext.2) at the P.S. by a seizure list (Ext.1/13). P.W.12, a witness to the above seizure, admitted that he did not sign on any label. It appears from the evidence of P.W.22 that on relevant date of reported seizure of ganjee and shirt at the P.S. appellant no.1 was in custody. There is nothing on record where from those articles namely ganjee and shirt were produced. Furthermore, FSL report (Ext.11) discloses that tea cup and plate, steel glass, concrete cement, full pant, full shirt and sando genjee contained human blood and the blood stains found on full pant cutting, wooden bar, sando ganjee was of blood group 'B' but nothing was brought on record to show that the victim's blood was also of blood group 'B'. Learned Trial Judge taking into account the non production of the seized articles during trial for identification by the witnesses and absence of any proper seal and label or any signatures of the investigating officer or the witnesses or the appellant no.1 on the seized shirt and ganjee held that such recovery has got no legal value and prosecution has also failed to prove that shirt and ganjee were actually recovered from appellant no.1. We do not find any error with regard to the above conclusion of the learned court below in the light of the settled proposition of law. 37. We do not find any error with regard to the above conclusion of the learned court below in the light of the settled proposition of law. 37. Another circumstance which the prosecution has tried to prove against the appellants is that they absconded from their house on the relevant night after committing the murder of the victim and failed to prove the alibi that they were not present in the house on the relevant date. Admittedly, at the time of recovery of the dead body of the victim appellants were not present in their house. In this regard it was all along the specific stand of the defence that on Friday February 18, 2005 appellants went to the house of D.W.1, brother-in-law of appellant no.1, to attend festival of Bhim Ekadashi. Appellant no. 2, during her examination under Section 313 Cr.P.C., also specifically stated that the day before the incident she and her husband went to the house of her 'nanad' (sister-in-law) at Gopalganj on the occasion of Bhim Ekadashi and in the afternoon of 20th they came back home at Ganipur and on 21st at 1.00 a.m. in the night police arrested them from their house though P.W.22 has claimed that he arrested both of them from the father's house of appellant no.2. Save and except the claim of P.W.22 there was no witness to their such arrest from P.W.2's father's house. Be that as it may, P.W.3 and P.W.4 who were declared hostile by the prosecution have stated during their cross-examination by the defence that on previous day of the incident on Friday appellants went to the house of DW1 at Gopalganj to attend Bhim Ekadashi and they saw them going there. Even P.W.5, who was not declared hostile by the prosecution specifically stated that on Friday before the date of incident both the appellants went to the house of Swapan Das (DW1) at Gopalganj for festival of Bhim Ekadashi and in the afternoon of next Sunday they returned to their house. DW1 has also specifically stated that on Friday February 18, 2005 both appellants came to his house at Gopalganj for the festival of Bhim Ekadashi and on February 20, 2005 at about 13.30 hours they left his house. DW1 has also specifically stated that on Friday February 18, 2005 both appellants came to his house at Gopalganj for the festival of Bhim Ekadashi and on February 20, 2005 at about 13.30 hours they left his house. He did not agree to the prosecution suggestion that the appellants did not go to his house on February 18, 2005 and he has deposed as per instruction of appellant no.1. Save and except by putting suggestion nothing has been brought on record to disbelieve his oral testimony. Furthermore, failure on the part of the prosecution to declare P.W.5 hostile indicates that prosecution has relied on his evidence. Under such circumstances there was no reason to discard his evidence. Moreover, there is nothing on record to show that any investigation was made by either of the investigating officers from the neighbors or villagers of DW1 nor any one of that village was examined or cited as witness to disprove the claim of the appellants and DW1 that appellants did not to go to his house on February 18, 2005. Even no evidence has been adduced from the side of the prosecution nor any witness has come forward to depose that on the relevant date or on the relevant night they saw the appellants present in their house. P.W.21 has clearly admitted that they were not aware about the house of the appellants and on the relevant night local people identified the house of the appellants. Admittedly, those local people have not been cited as witnesses. According to P.W.21, Kajal Das and others told them that they believe that appellants murdered the victim. The basis of their such belief appears to be based simply as the dead body of the victim was recovered from the varadah of the house of the appellants. P.W.22 admitted during cross-examination that as per the sketch map and index (Ext. 6 and 6/1) there are two rooms marked as 'A' and 'B' and those two rooms are adjacent to each other and both the rooms has a common varandah and in that varandah dead body of the victim was found lying. He further deposed that Ashok Das, brother of appellant no.1 used to reside in the room marked 'B'. Admittedly, P.W.22 did not examine Ashok Das nor any reason was assigned. Furthermore, from the seizure list (Ext. He further deposed that Ashok Das, brother of appellant no.1 used to reside in the room marked 'B'. Admittedly, P.W.22 did not examine Ashok Das nor any reason was assigned. Furthermore, from the seizure list (Ext. 1/10), it is evident that one iron made broken door has-bolt (a rod that slides into a hole or socket to fasten a door or gate) was also seized by the investigating officer. Even for the sake of argument if we accept the prosecution story that the appellants in a pre-planned manner committed murder of the victim and fled away therefrom but generally it is not expected that the assailant while fleeing away keep all the lights of his house on, break the iron has-bolt and keep the main door open. It is also very astonishing as who informed police that the dead body of the victim was lying in the varandah of the appellants. Even no investigation was made to that effect by the investigating officers nor any attempt was made to collect the call records. Seizure of the door hatchbolt in broken condition prima facie shows that same might have been broken to make way into the house. There is nothing on record to show that any such investigation was made with regard to the recovery and seizure of the hathchbolt from the house of the appellants. Seizure of the broken iron hatchbolt by the investigating officer itself indicates that it might have got some relevance in connection with the murder of the victim. 38. Undoubtedly, this case relates to brutal murder of the victim but the prosecution has failed to solve the mystery by producing cogent and reliable evidence as to when and why the victim went to that place and/or who called him there. It may be true that appellant no.1 was the driver of one of the trucks of transport business of the victim but there is nothing on record to show that the appellants had any grudge or ill feeling against the victim. 39. It may be true that appellant no.1 was the driver of one of the trucks of transport business of the victim but there is nothing on record to show that the appellants had any grudge or ill feeling against the victim. 39. Learned trial judge convicted the appellants mainly on the ground that dead body of the victim bearing several injuries was recovered from the varandah of the house of the appellants and the appellants failed to prove the alibi that they were not present in their house on the relevant night and had been to the house of DW1 one day prior to the incident and drew presumption under Section 106 of the Evidence Act holding that appellants having special knowledge failed to give any explanation about the murder of the victim in their house. The learned trial judge totally disbelieved the evidences of P.W.3, P.W.4, P.W.5 and D.W.1 and went to the extent of observing that if the accused/appellants were not in their house on the date of incident, then how the mobile phone, motor cycle and other articles of the deceased were found and recovered from that house and how the said articles were kept their absence and/or who lit the electric bulbs of their house. The grounds for disbelieving the evidences of P.W.3, P.W.4, P.W.5 and D.W.1 appears to be based on surmise and conjecture and not on a sound footing. Probably, it escaped the attention of the learned trial judge that P.W.5, a prosecution witness, who was not declared hostile by the prosecution, supported the claim of DW1. Failure to declare a witness hostile by the party producing that witness tantamounts to acceptance of his entire testimony by the party producing that witness. It also escaped attention of the learned trial judge that the investigating officers did not make any investigation from the neighbors or villagers of DW1 nor any person of that village was examined or cited as a witness to disbelieve the claim of the appellants as also P.W.3, P.W.4, P.W.5 and DW1 that on February 18, 2005 appellants did not go to the house of DW1. Even no witness was examined by the prosecution to prove that on the relevant date and/or on the relevant night they saw that appellants were very much present in their house at Ganipur village. Even no witness was examined by the prosecution to prove that on the relevant date and/or on the relevant night they saw that appellants were very much present in their house at Ganipur village. None of the adjoining house owners, residents or villagers of the appellants were examined during investigation or cited as witness for the reason best known to the prosecution. Learned trial judge also overlooked the factum of seizure of one iron made door hatchbolt (broken) from the house of the appellants. It also escaped attention of the learned trial judge that the verandah in question where the dead body of the victim was found is a common verandah of two rooms, one occupied by the appellants and other one by Ashoke Das, brother of the appellant no. 1 and the investigating officer did not bother to trace out or examine Ashoke Das nor any reason was assigned for the same. In the light of the discussions and observations made in the body of the judgment learned trial judge was not justified to draw presumption under Section 106 of the Evidence Act holding the appellants guilty for the commission of the murder of the victim in a preplanned manner and in furtherance of their common intention. But merely, because dead body of the victim was found in the common verandah presumption of the provisions of Section 106 of the Evidence Act cannot be drawn unless it was proved beyond any shadow of doubt that appellants were all along present at the time and place of occurrence. In view of the specific statements of appellant no.2 during her examination under Section 313 Cr.P.C. and being corroborated by P.W.3, P.W.4, P.W.5 and DW1 learned trial judge was not justified in holding that appellants were very much present in their house at Ganipur on the night of the incident and after committing of the offence they absconded from the place. The possibility that the occurrence might have taken place in some other manner cannot be completely ruled out in the light of the discussions made herein above. 40. In view of the foregoing discussions, we have no hesitation to conclude that prosecution has failed to establish the chain of circumstances which could link the appellants with the crime. The possibility that the occurrence might have taken place in some other manner cannot be completely ruled out in the light of the discussions made herein above. 40. In view of the foregoing discussions, we have no hesitation to conclude that prosecution has failed to establish the chain of circumstances which could link the appellants with the crime. In this background we are of the considered opinion that the learned trial court has erred in coming to the conclusion that the prosecution has established its case based on circumstantial evidence beyond all reasonable bout. The appellants, therefore, are entitled to benefit of doubt and deserve to be acquitted. 41. In view of the distinguishable facts and circumstances involved in this case, the decision of State of Rajasthan Vs. Thakur Singh (supra) do not help the prosecution case. 42. In the result we allow this appeal and set aside the order of conviction and sentence dated June 13, 2007 and June 14, 2007 respectively passed by the learned Additional District & Sessions Judge, 5th Fast Track Court, Malda in Sessions Trial No. 19(7)2006 arising out of Sessions Case No. 105 of 2006. We accordingly order the acquittal and release of the appellants from custody forthwith unless wanted in any other case. 43. Copy of this judgment along with LCR were sent down to the trial court immediately by special messenger for information and taking necessary action. 44. Urgent photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard. I agree - Jay Sengupta, J.